New legislation became effective in Ohio last Friday, July 3, that attempts to respond to the toxic algal blooms that shut down water service to approximately 500,000 customers in Toledo last summer. The application of fertilizer on frozen, snow covered, or saturated soil in the Western Basin of Lake Erie—where the majority of phosphorous spills into the lake from the acres upon acres of farmland in the Maumee River basin—is now prohibited, as is the application of fertilizer within 24 hours of a 50% chance of more than an inch of rain. Ohio also entered into a collaborative agreement with Michigan and Ontario to reduce phosphorous loads entering Lake Erie by 40% by 2025, with an interim aspirational goal of a 20% reduction by 2020. Each state also committed to develop an implementation plan with stakeholder input.
While these efforts represent a step in the right direction, harmful algal blooms are a national and international problem, and much of the regulatory burden continues to be placed on publicly-owned treatment works (POTWs). The new law requires POTWs statewide with a design flow of 1 million gallons per day (MGD) or greater to monitor for phosphorous and conduct optimization studies aimed at meeting a phosphorous limit of 1 mg/L. This new requirement will impact over 500 POTWs across the state, with no impact on the nutrient pollution in Lake Erie. POTWs in the Lake Erie Basin with a design flow of 1 MGD or more are already required to meet a total phosphorous discharge limit of 1 mg/L as a daily average, so this increased scrutiny as a means of addressing the algal blooms in Lake Erie is inexplicable.
Recent studies, and Ohio EPA’s own Nutrient Reduction Strategy, overwhelmingly support the conclusion that further regulation of POTWs will have no effect on nutrient pollution without meaningful, enforceable limits on agricultural fertilizer application. Ohio’s agricultural regulation otherwise consists of voluntary implementation of best management practices, and Ohio has yet to take any meaningful steps toward statewide, enforceable regulation of agricultural runoff. At a time when federal courts are recognizing the importance of addressing agricultural nonpoint sources to improve water quality (see NACWA’s press release on this week’s ruling on the Chesapeake Bay), it is imperative that states start taking more aggressive action to nonpoint pollution.
The National Oceanic and Atmospheric Administration (NOAA) predicts that 2015 could see algal blooms just below the 2013 levels, which was the second most severe year for blooms with 2011 being the worst on record. Heavy rains in June have already resulted in the development of low levels of microsystin—the toxin that caused the Toledo shutdown—in western Lake Erie, much earlier than usual. Microsystin doesn’t usually develop until August. NOAA will be issuing its official algae forecast on July 9, in cooperation with researchers from Ohio State University and Heidelberg University.
Read more about the challenges associated with addressing this issue in my article.
Erica M. Spitzig is an Attorney at Graydon Head & Ritchey LLP in Cincinnati, Ohio